MICHIGAN EDUCATION ASSOCIATION v ALPENA COMMUNITY COLLEGE

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The Michigan
Employment Relations Commission ordered an election to determine
whether a group of unrepresented Alpena Community College
employees should be represented by the collective bargaining
representative of an existing unit at the college. The Court of
Appeals reversed the election order, but we reinstate the
decision of the MERC.

I

The Michigan
Education Association is the collective bargaining representative
for a unit of nonsupervisory office personnel at Alpena Community
College. Building service employees, including custodians and
maintenance workers, are represented by a separate union. It
appears from the record that a third bargaining unit exists for
Alpena Community College faculty.

As of September
1993, approximately thirty employees remained outside the three
bargaining units. This residual group was a diverse collection of
unrepresented nonsupervisory support staff. In the course of its
decision on this matter, the MERC provided a roster of the
positions held by these persons:

In a September 1993
petition, the MEA asked the MERC to "accrete" the
residual unit to the existing MEA unit of clerical employees.
That is, the petition sought an election among the residual group
to determine whether those persons wanted to join the existing
unit and be represented by the MEA.

After an evidentiary
hearing, the MERC ruled in favor of the MEA, directing that the
election be conducted.[1]

The Court of Appeals
stayed the election[2]and
denied the MEA's motion to affirm.[3]The
Court then reversed the decision of the MERC.[4]
Judge HELENE N. WHITE dissented.

The MEA has applied
to this Court for leave to appeal.

II

Where the bulk of an
organization's employees are formed into several collective
bargaining units, leaving behind a handful of unrepresented
employees, it is quite foreseeable that the residual group will
be a scattering of persons with miscellaneous duties. So it is in
this case.

In such a situation,
the MERC faces a tension between two competing considerations as
it fulfills its statutory obligation to determine a proper
bargaining unit.[5]One
is the principle of "community of interest," which
calls for employees to have shared interests with others in their
bargaining unit. The opposing consideration is that collective
bargaining units should be reasonably large to avoid a
proliferation of fragmented bargaining units.

"In designating
bargaining units as appropriate, a primary objective of the
commission is to constitute the largest unit which, in the
circumstances of the particular case is most compatible with the
effectuation of the purposes of the law and to include in a
single unit all common interests."

Elaborating on the
analysis to be employed by the MERC, the Court of Appeals said
this in 1990:

In designating
appropriate bargaining units, the commission's primary objective
is to constitute the largest unit which, under the circumstances
of the case, is most compatible with the effectuation of the
purposes of the law and includes in a single unit all common
interests. Mich Ass'n of Public Employees v AFSCME
Council 25, 172 Mich App 761, 765; 432 NW2d 748
(1988), quoting Hotel Olds v Labor Mediation Bd,
333 Mich 382, 387; 53 NW2d 302 (1952). Consistent with this
objective, the commission's policy is to avoid fractionalization
or multiplicity of bargaining units. Ass'n of Public
Employees, supra, 765. The touchstone of an
appropriate bargaining unit is a common interest of all its
members in the terms and conditions of their employment that
warrants inclusion in a single bargaining unit and the choosing
of a bargaining agent. Id. This Court
abides by the commission's policy to constitute the largest
bargaining unit compatible with the effectuation of the PERA. Id.,
765-766. [Muskegon Co Professional Command Ass'n v
Muskegon Co, 186 Mich App 365, 373-374; 464 NW2d 908
(1990).]

In the present case,
the MERC determined that the proposed residual unit was
appropriate, and directed that the election be held. It outlined
the principles stated in Hotel Olds and Muskegon
Co Professional Command Ass'n, and noted its own
longstanding preference for broad units of support personnel in
school cases,[7]before
concluding:

Although not all
employees in the proposed unit have similar duties, skills, or
educational qualifications, there are similarities in these areas
among individual positions. The fact that salaries and benefits
vary among the positions sought is not sufficient to destroy
their community of interest. Washtenaw Community
College, 1993 MERC Lab Op 781, 790-791. The
employees all work on the Employer's main or auxiliary campuses,
and the Employer's organization chart demonstrates a centralized
management system. Under Hotel Olds, supra,
we are required to find appropriate the single largest group of
employees who share a community of interest. This rule is for the
benefit of employers, since it minimizes the fragmentation of
units, prevents units based on extent of organization, and
eliminates problems associated with multiple bargaining
obligations. See Livonia Public Schools,
1988 MERC Lab Op 1068, 1075-1081; and 1989 MERC Lab Op 190,
192-193. We find that the unit sought by Petitioner satisfies
this requirement. We conclude, therefore, that the residual group
in this case, all nonsupervisory, nonfaculty employees excluded
from existing units, may be accreted to the existing clerical
unit to form a single all-college unit. [1994 MERC Lab Op 967.]

In its majority
opinion, the Court of Appeals agreed with Alpena Community
College that the employees "do not enjoy a community of
interest." The majority explained:

Respondent notes
that the employees have different duties, educational
requirements, pay and benefits. While we recognize the MERC
policy towards achieving the largest compatible bargaining units,
we must agree with respondent that the employees sought to be
accreted are simply too diverse to be considered to have a
community of interest. A mere reading of the job titles
demonstrates this. They work in a variety of different areas of
the college in numerous different tasks. Some are technicians,
while others are managers and directors. There are administrative
support employees, student activities employees, bookstore
employees, and even parking lot employees. The only commonality
we see among these employees is that they have the same employer.
Accordingly, we conclude that the trial court erred in its
conclusion. See Muskegon Co Professional Command
Ass'n v Muskegon Co, 186 Mich App 365; 464 NW2d 908
(1990).

Writing in dissent,
Judge WHITE quoted at length from the MERC opinion, noting that
Alpena Community College had variously argued below that the
proposed unit was both too narrow and too broad, though the
college had not proposed an alternative unit. Accepting the
conclusions reached by the MERC, Judge WHITE wrote that the
"MERC's determination prevented further fragmentation and
the leaving behind of even smaller groups of unrepresented
employees, and was appropriate under the circumstances."

III

Appellate review of
a determination by an administrative agency is limited. The Court
of Appeals has correctly identified the standard of review:

Determination of a
collective bargaining unit is a finding of fact, not to be
overturned by this Court if it is supported by competent,
material and substantial evidence. [Int'l
Union, United Automobile, Aerospace & Agricultural Implement
Workers v Sterling Heights, 163 Mich App 8, 11; 413
NW2d 716 (1987) (citations omitted).]

Elsewhere, this
standard has been described in slightly different terms:

The determination of
the appropriate bargaining unit is a finding of fact. This Court
will not substitute its judgment for that of the commission with
regard to the appropriate bargaining unit unless there is a clear
showing of error. Id.[8] [Muskegon
Co Professional Command Ass'n, supra
at 374.]

See also Hosp
Employees' Div, Local 79, Service Employees' Int'l Union, AFL-CIO
v Flint Osteopathic Hosp, 390 Mich 635, 638; 212
NW2d 897 (1973) ("The appellate courts of this state will
hesitate to substitute a judicial judgment of the appropriate
unit for MERC's determination, and will do so reluctantly and
only upon a showing of clear error").

Const 1963, art 6,
Sect. 28 indicates that factual determinations by the MERC are to
be reviewed according to the competent, material, and substantial
evidence standard. Under these circumstances, the phrase "a
clear error" is properly understood as an absence of
competent, material, and substantial evidence on the whole record
to support the finding.

Decisions of the
MERC regarding residual bargaining units are generally to be
given significant deference under this standard. Not only do such
disputes tend to be unique, but a residual-unit case necessarily
involves employees who remain after the formation of other,
better defined bargaining units. Gathering up remaining employees
into a residual unit will nearly always involve joining employees
with diverse job descriptions. The factual determination whether
the proposed residual unit is excessively diverse lies with the
MERC, and it will not be disturbed if it is supported by
competent, material, and substantial evidence.

We agree with Judge
WHITE that the decision of the MERC was sound. While the residual
group contains persons with varying responsibilities and
compensation levels, we see no sign that the statutory purposes
or the goals of collective bargaining would be frustrated by
formation of the unit approved by the MERC. On review of this
matter, we are satisfied that its findings were supported by
competent, material, and substantial evidence.

For these reasons,
we reverse the judgment of the Court of Appeals and reinstate the
decision of the Michigan Employment Relations Commission. MCR
7.302(F)(1).

I concur with the
result of the per curiam opinion, but write separately to clarify
the application of the substantial evidence standard.

The opinion states:
"Decisions of the MERC regarding residual bargaining units
are generally to be given significant deference under this
standard." Slip op, p 9. This statement implies a more
limited review under the substantial evidence standard than this
Court has adopted. This Court's interpretation of the substantial
evidence standard was described in MERC v Detroit
Symphony Orchestra, 393 Mich 116, 124; 223 NW2d 283
(1974):

What the drafters of
the Constitution intended was a thorough judicial review of
administrative decision, a review which considers the whole
recordCthat is, both sides of the recordCnot just those portions
of the record supporting the findings of the administrative
agency. Although such a review does not attain the status of de
novo review, it necessarily entails a degree of qualitative and
quantitative evaluation of evidence considered by the agency.
Such review must be undertaken with considerable sensitivity in
order that the courts accord due deference to administrative
expertise and not invade the province of exclusive administrative
fact-finding by displacing an agency's choice between two
reasonably differing views.

Detroit Symphony
Orchestra still controls our application of the
standard.

I agree that it is
correct to affirm the MERC decision that an election may be
conducted to determine whether the residual employees want to
join the existing clerical employee bargaining unit. I do so
because a thorough review of the whole record reveals a close
decision. On the one hand, the functions of the residual
employee's seem too diverse to share a "community of
interest." On the other, these employees clearly share
supporting roles in the college community. Given that reliance on
either of these factors is reasonable, it is not our place to
reverse the MERC's decision. The result in this case is further
supported by the policy articulated in Hotel Olds v
Labor Mediation Bd, 333 Mich 382; 53 NW2d 302
(1952), which seeks to create the largest unit possible.

The commission,
after consultation with the parties, shall determine such a
bargaining unit as will best secure to the employees their right
of collective bargaining. The unit shall be either the employees
of 1 employer employed in 1 plant or business enterprise within
this state, not holding executive or supervisory positions, or a
craft unit, or a plant unit, or a subdivision of any of the
foregoing units. If the group of employees involved in the
dispute was recognized by the employer or identified by
certification, contract or past practice, as a unit for
collective bargaining, the commission may adopt that unit. [MCL
423.9e; MSA 17.454(10.4).]

The commission shall
decide in each case, in order to insure employees the full
benefit of their right to self-organization, to collective
bargaining and otherwise to effectuate the policies of this act,
the unit appropriate for the purposes of collective bargaining as
provided in [MCL 423.9e; MSA 17.454(10.4)]. [MCL
423.28; MSA 17.454(30).]

This Commission has
always preferred broad units of support-type employees, and has
found a community of interest among such employees, wherever
prior bargaining history or the agreements of the parties do not
prevent such findings. For example, compare Dearborn
Public Schools, 1990 MERC Lab Op 513, 516-518
(refusal to sever clericals from broad noninstructional unit); Waverly
Comm Schools, 1989 MERC Lab Op 819, 821 (clericals
found to have community of interest with food service employees);Forest Hills PS, 1989 MERC Lab Op 781,
785 (food service combined with custodial-maintenance); Farwell
Area Schools, 1986 MERC Lab Op 671, 673, and Morley-Stanwood
Comm Schools, 1985 MERC Lab Op 752, 753 (presumed
appropriateness of broad nonteaching, nonclerical unit); Houghton
Lake Comm Schools, 1980 MERC Lab Op 603, 605 (bus
employees combined with custodial-maintenance); with South
Redford School Dist, 1966 MERC Lab Op [160] 162-163
(refusal to exclude food service employees from nonteaching
unit); and Union School Dist of Jackson,
1966 MERC Lab Op 30, 32-35 (refusal to permit craft severance).
As illustrated by the above cases, the Commission has always
found instructional units separate from support, auxiliary, or
noninstructional employees. See also Lansing School
Dist, 1989 MERC Lab Op 160, 167 (refusal to sever
hearing interpreters from paraprofessional unit and place with
teaching employees). To further the policy of favoring the
broader unit, the Commission will in appropriate cases permit
consolidation of separate units of support or nonteaching
employees, as in Van Buren PS, 1990 MERC
Lab Op 691, 694-695. Thus, we reject the position of the College
that the unit sought in this case is too broad or diverse and
does not share a community of interest. [1994 MERC Lab Op
966-967.]